Wednesday, August 30, 2006

The warrantless surveillance ruling

Commentary by David Reinhard


David Reinhard

How can you tell U.S. District Judge Anna Diggs Taylor's opinion slapping down the National Security Agency's warrantless surveillance program is a piece of results-based jurisprudence that only a judicial activist—or the fiercest critics of the NSA program—could love?

Is the fact that President Carter appointed Taylor to the federal bench or that the Detroit Free Press once described her as "a liberal with Democratic roots" a sign? No, although that certainly slaps a big "bears investigating" note on the judge's opinion. The evidence of results-driven judicial overreaching is in—and not in—the opinion itself.

Start with Taylor's hot verbiage. A bit of rhetorical razzmatazz is one thing, but her opinion is shot through with rhetoric that would be more suitable to a rally. "There are no hereditary kings in America," she writes, "and no powers not created by the Constitution."

Well, fine. President Bush isn't claiming powers not created in the Constitution, and the "hereditary" jazz just gives Taylor's game away. A judge who ramps up the rhetoric better have the analysis to pull it off. But Taylor's opinion is almost all attitude and assertion. Her analysis is nonexistent when it's not lame.

Taylor writes that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as a particularity as to persons, places, and things, and the interposition of a neutral magistrate between executive branch enforcement officers and citizens." In fact, a warrant is not always required even in exclusively domestic cases. There are exceptions where warrants are not required. The Fourth Amendment protects against "unreasonable searches" and then goes on to set out the requirements of warrants issued on probable cause. The key to the Fourth Amendment is reasonableness.

She spends just a few pages on the administration's inherent-powers argument and manages to misstate that: "The government appears to argue here that ... particularly because the president is designated commander in chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself."

That may be how it appears to Taylor. That certainly makes a nifty sound bite. But that's not the government's argument at all. Its position is not that the president's inherent powers as commander in chief allow him to violate the Constitution. Those inherent powers, the government argues, are part of the Constitution itself. In addition, the NSA program, far from violating the laws of Congress, is consistent with Congress' Foreign Intelligence Surveillance Act (Section 109 says it's unlawful to conduct electronic surveillance "except as authorized by statute") read in conjunction with its Authorization for Use of Military Force Resolution.

It's hard to offer a real critique of an argument you're unwilling to state correctly in the first place.

No wonder Taylor's opinion was met with groans even from those who think the NSA program may be unlawful. The Washington Post found it "neither careful nor scholarly" and "unhelpful ... in evaluating ... the program's legality." Orin Kerr, a George Washington University Law School professor, told The New York Times the opinion was "just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect)."

What's most telling, however, is the dog that doesn't bark in Taylor's opinion. She fails to mention a case that came years after Congress passed FISA, a case handed down by the FISA court of review. Not even in a footnote. Here's the money quote from the FISA court of review's 2002 "In Re Sealed Case" opinion: "The Truong court, as did all the other courts ... held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the president's constitutional power."

It's easy to see why Taylor took a pass on this.

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